McCormick v. Carnett-Partsnett Systems, Inc.

• Citation: 396 F. Supp. 251
• Decision Date: 10 June 1975
• Docket Number: No. 74-466-Civ-J-T.,74-466-Civ-J-T.
• Parties: Clifford McCORMICK, Plaintiff, v. CARNETT-PARTSNETT SYSTEMS, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

396 F. Supp. 251

Clifford McCORMICK, Plaintiff, v. CARNETT-PARTSNETT SYSTEMS, INC., Defendant.

No. 74-466-Civ-J-T.

United States District Court, M. D. Florida, Jacksonville Division.

June 10, 1975.

John L. Briggs, U. S. Atty., M.D.Fla., Jacksonville, Fla., for plaintiff; Charles B. Lembcke, Asst. U. S. Atty., of counsel.

Marks, Gray, Conroy & Gibbs, Jacksonville, Fla., for defendant; George Stelljes, Jr., Jacksonville, Fla., of counsel.

OPINION

IRVING BEN COOPER, District Judge.

Plaintiff was made a permanent, full-time employee of defendant on May 6, 1971 in a position entitled "Computer Output Quality Controller." He worked in that capacity until his re-enlistment in the United States Air Force on August 23, 1972 and served until June 1, 1973, was honorably discharged and returned to civilian life. On June 5, 1973 defendant denied his application for reemployment. (Ex. 1, ¶¶ 1, 4, 6-8) Plaintiff then turned to the Labor-Management Services Administration, an agency within the U. S. Department of Labor, for assistance. (Tr. 39)¹ After negotiations plaintiff was hired on July 23, 1973 as a "Telecommunications Operator." On October 26, 1973 defendant discharged plaintiff from all employment. (Ex. 1, ¶¶ 9, 12)

Plaintiff subsequently brought this action seeking damages and reinstatement pursuant to the Military Selective Service Act of 1967, 50 U.S.C.App. § 459. He asserts (1) that the position to which he was restored was not of "like status" to the position he held prior to military service, and (2) that his discharge was without cause or notice. Trial was held before the Court, and after careful study, and for the reasons set forth below, we reject these contentions.

Under the terms of the Act, a veteran, if still qualified to perform the duties of his former position with a private employer, has the right to be restored by his former employer to such position or to a position of like seniority, status and pay, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so. The Act further provides that the veteran so restored shall not be discharged without cause within one year after such restoration.²

I. Restoration

Plaintiff herein does not concern himself with the pay of the positions ($450 a month for both) (Ex. 1, ¶¶ 2, 9) nor does he raise any issue of seniority. He contends, however, that the former position entrusted him with greater responsibility, less supervision and greater opportunity for advancement in defendant's operations.

Defendant is responsible for the inventory control of Toyota cars and parts for the southeast region of the United States. It employed about 12 people during the first period (i. e., during plaintiff's former position) and about 16 during the second period (i. e., during plaintiff's restored position). The bulk of defendant's work is done by teletype and computer. (Tr. 133, 142-143) In his work at his former position, plaintiff did the evening "poll" of Toyota dealers, that is, he would contact the dealers by teletype and pull messages through the teletype into defendant's office. He would group the messages into part orders and car sales, code them, set up the equipment to convert the paper tape to magnetic tape so the information could be processed for the computer, correct the rejects, and transmit all the information received during the evening poll to defendant's office in Pompano, Florida. At that time defendant was responsible for 60 to 70 dealers. Plaintiff worked from 5:00 p.m. to 12 midnight. (Tr. 22-26) Plaintiff's performance at his former position was considered satisfactory. (Tr. 135, 143)

The circumstances of defendant's business changed in the interim between the first period and the second. The number of dealers had increased to 130. (Tr. 133) The data processing system had been enlarged and become more sophisticated, defendant had changed its operating methods substantially, and in plaintiff's former position, approximately 80% of the duties he had once performed in that job were no longer being performed in the same manner. (Tr. 112, 115, 137, 139) For these reasons defendant did not restore plaintiff to his former position but to one which it considered comparable in responsibility and pay. (Tr. 112-114) We found convincing the proof adduced by the defense.

Plaintiff's restored position involved different hours and somewhat different duties. During the second period, as a Telecommunications Operator, he worked days, from 8:00 a. m. to 5:00 p. m. Again his job required substantial use of the teletype to contact Toyota dealers; however, he was also required to do clerical work on a regular basis, including stock control, sending out the mail and keeping the manuals current. His supervisors were four in number, rather than only one, as in the first period. (Tr. 52-56)

In our consideration of this issue, plaintiff urges that we examine the totality of the circumstances: the work responsibility and status, general working conditions, job location, shift assignment and rank in the corporate structure. See Monday v. Adams Packing Assoc. Inc., 74 CCH Labor Cases ¶ 14,263 (M.D.Fla.1973). More specifically, plaintiff argues that the restored position involved significantly less responsibility, closer supervision, change in the nature of duties, and little, if any, opportunity for advancement.

We note at the outset that assignment of an employee to a different shift does not, by itself, constitute a change in status. Grubbs v. Ingalls Iron Works Co., 66 F.Supp. 550 (N.D.Ala.1946), involved an employer who had the right to assign employees of the veteran's classification to day or night shift at will; Boone v. Fort Worth & Denver Ry. Co., 223 F.2d 766 (5th Cir. 1955), involved a returning veteran who could not have been displaced from his shift had he not entered the service. In both cases the veteran was seeking assignment from the night shift to the day shift, but the principle was the same: the returning veteran has not been given an inferior position where the only difference was the hours worked.

The question before us, then, is whether the other differences between plaintiff's former and restored positions constitute a change in status. Bova v. General Mills, Inc., 173 F.2d 138 (6th Cir. 1949), an influential case, discussed this point at length. There the veteran/ employee argued that the Act

gives the option not to the employer, but to the employee to select the job to which he is to be restored. He the veteran claims that the employer has no alternative, if the original position exists, but to displace the person holding it at the time the veteran demands reemployment, and to give it to the veteran. He urges that the employer's alternative right to offer an equivalent position arises only when the original position has ceased to exist or is changed. This contention ignores the plain terms of the statute. The clearly expressed intention of the Congress is two-fold: First, to protect the veteran by insuring him reemployment, and second, to give the employer leeway in adjusting to the dislocations caused by the departure of men in great numbers to fill the armed services. It therefore included in the statute an alternative provision, permitting the employer in accordance with the dictates of sound management, to give the veteran not the identical position, but one of `like seniority, status, and pay,' that is, similar employment. 173 F.2d at 140.

This approach has been adopted by other Circuits as well, including the Second, Major v. Phillips-Jones Corp., 192 F.2d 186, 188 (1951); the Fifth, Boone v. Fort Worth & Denver Ry. Co., supra; and the Seventh, Schwetzler v. Midwest Dairy Products Corp., 174 F.2d 612, 613 (1949).

Applying this rule, although plaintiff's restored position did involve somewhat different duties, it nevertheless was not inferior to his former position. In both positions plaintiff's essential and primary function was as a teletype operator. (Tr. 150, 200) While we point out later that the testimony of plaintiff was not convincing, it might be mentioned here that even he admitted this, and conceded that in his restored position half his time was devoted to teletype duties. (Tr. 47, 56, 74)

Plaintiff had done clerical work frequently in the first period (Tr. 135, 150-152, 192), and defendant's operation during both periods was such that everyone, including management, did clerical work as the need arose. (Tr. 172-173, 191-192, 205) In fact, much of the clerical work to which plaintiff now objects was done during the first period by his superiors. (Tr. 204-205)

Plaintiff complains of close supervision during the second period. First, we note that we have found no case that so much as suggests that close supervision is such a change in status as contemplated by Congress. Secondly, plaintiff was subject to more supervision not because he required more supervision but because he was working in the daytime, the period when most of defendant's business is conducted and when more people, including his superiors, were around. (Tr. 153-154, 204) A time did come when plaintiff was required to keep daily time sheets; by this point, however, his work rate had slowed considerably, a factor which prompted defendant to determine how he was spending his time. (Tr. 225-226) The record contains nothing to suggest that defendant was supervising plaintiff in particular more closely or that its standards had changed. If one does his job, what matters the amount of supervision?

Finally, during the second period plaintiff had far more opportunity for advancement because he had more contact with various phases of defendant's operation. (Tr. 204-205, 211) A witness (Edward Machek) for defendant testified emphatically that had plaintiff "knuckled down to work" he probably would have been promoted to the position of his immediate superior, as Data Control Supervisor. (Tr. 214-215)

In sum, we were...